As one who has practiced and published on the law of navigable waters, who is also an avid canoeist and landowner, I am of the opinion that the majority opinion in this decision distorts settled principles of law, ignores the relevant facts, overemphasizes irrelevant facts, and does great damage to centuries-old, settled property expectations of landowners in New York State. The decision is almost ideological.

I'm curious to know more about your experience. Would you mind sharing details? I'd especially be interested to read what you've published.

The majority opinion literally holds that any stream is "navigable-in-fact" and subject to public usage as long as:

(1) someone can get access to it through public lands and float a canoe on part of it;

What do you imply by "float a canoe on part of it", according to multiple sources (DEC, AG, plaintiffs, defendant, others) the entire route is canoe-able. Are you referring only to the private waterway section? (which apparently can float a canoe along the whole length except for the short rapids at mud pd outlet). To my knowledge, plaintiffs never disputed the "material facts" of the case, this seems to be one of these facts.

Quote:

Originally Posted by Glenn MacGrady

(2) even though that public access only came about a few years ago and was never historically present;

Can you please reference NYS case law on Common Law requirements for sufficient vs insufficient "history of public access"?

Quote:

Originally Posted by Glenn MacGrady

(3) even though the access is only via miles of arduous and multiple portages;

Are there examples in prior (NY) case law which illustrate how "arduous" a portage has to be to disqualify a stream from being Navigable? (which fits the description of the portage around Mud pd outlet rapids)

Quote:

Originally Posted by Glenn MacGrady

(4) even though the canoe-only passage is blocked in part by impassable rapids, requiring portage on the private lands;

State DEC & AG argue that portaging around navigation obstacles is granted under common law provisions. I've not seen the portage, but it's been said rapids are less than 500' in length and there exists a private portage trail around them. This point goes back to what's navigable..

Quote:

Originally Posted by Glenn MacGrady

(5) even though parts of the canoe-only floatable water is passable in places only because the private landowner clears out the dead-fall and sweepers for his personal use;

Seems to be a tough one to argue, without being able to show how "impassable" it would be with no such maintenance?

Quote:

Originally Posted by Glenn MacGrady

(6) even though no one, in actual history, ever considered this waterway to be public navigable waters until the State of New York acquired the adjacent lands 20 years ago; and
(7) even though this decision would change centuries-old expectations of private landowners whenever the State acquires adjacent private lands.

Is there a statutory definition of "expectations" of private land ownership? If the state is "taking" away a right it's required to compensate the landowner, a compensation for "expectation" doe not (yet) exist.

Quote:

Originally Posted by Glenn MacGrady

The general idea of the "public highway" character of navigable waters has always been that the general public could relatively conveniently use those waters for purposes of commerce or practical travel. The historical idea was that private property owners, in wilderness areas that did not yet have roads, couldn't block off access to those water routes that were the obvious and convenient ones for merchants to bring goods to market or for the general public to travel from place to place. Any good sized river or lake can meet this practical utility standard of navigability, and have.

"practical travel" or "practical utility" (for trade or travel)?

What happened in the early 20th century when state seized large tracts of timber and other lands for failure to pay taxes? Did public traverse those tracts and navigate through adjacent private lands?

If this decision stands, it will set a case law precedent. However, it will not automatically open every small stream in NYS, able to float a canoe, to public right of navigation.

On the other hand, if it is struck down, landowners will have a go ahead to chain and gate any stream passing through their land which has not been declared "navigable in fact". (which is why DEC and AG intervened in this case)

This is a great, balanced discussion. I believe in NY wading and floating are legally different. Also, some friends of mine who live on a newly created rail trail have had insurance cancelled after one hiker sued after being hurt after trespassing on their property.
I have sympathy's on both sides of this argument as a canoe tripper and property owner.
Turtle

This is a great, balanced discussion. I believe in NY wading and floating are legally different. Also, some friends of mine who live on a newly created rail trail have had insurance cancelled after one hiker sued after being hurt after trespassing on their property.
I have sympathy's on both sides of this argument as a canoe tripper and property owner.
Turtle

I look at that unfortunate scenario the same way as if someone broke into my home, fell down the stairs inside, and then sued me because of it.

I'm curious to know more about your experience. Would you mind sharing details? I'd especially be interested to read what you've published.

EDIT: As usual, Google is my friend.

I've discussed my background in prior threads on this case on this forum. My first job as a lawyer was litigating navigability cases in Florida on behalf of the state agency that holds title to all lands under allegedly navigable waters. My second job was litigating the same issues on behalf of land developers against that state agency.

I published two lengthy academic articles on the subject in the 1970's, one of which has been and still is cited by many courts, including the United States Supreme Court in at least one case. It's 105 pages long, but amazingly there's a picture of the first page of the table of contents on the web. The second page would show that I go on to analyze the history and currency of the various state laws on navigability, and what the proper interplay and priority should be between the various and differently-formulated federal and state tests of navigability.

My subsequent career as a legal practitioner and academician was in other areas of law, but as an avid lifetime paddler, I've always retained a reading interest in these kinds of cases.

I'm all in favor of opening up waters and access for paddlers, but not at the expense of distorting historical legal doctrines beyond recognition and, in the process, trampling on the reasonable and long-held property rights and expectations of landowners. There has to be a balance. Ivory tower ideological slavishness to "open up everything, no matter how trivial, and private ownership be damned" is not a balanced approach. It may be a good way to sell a magazine article, but it's not good public policy.

This is especially so in one of the few states in this country that literally overflows with an abundance of publicly paddleable waters.

All it does is give a few miles of extra paddling to a few heroic canoe hobbyists, while doing violence to settled law and common sense.

Heroic? I take exception to this obvious slight and veiled insult. It's a float punctuated by a few obstacles, but then so is the Erie Canal, You can't paddle straight through that either. The stream in question is NOT heroic. The carries that are needed now are much more heroic... If you find this stretch heroic, stay in Little Tupper lake, where you only have to carry your canoe a few feet to the waters edge, or Big Tupper where you can back your car in to launch it straight off your roof. Lake Lila with it's .6 carry will be much too heroic apparently.

Remember, the land owners already immensely benefit by the common lands of the park that surround their private holdings. Looked at from another direction, whatever they pay in taxes is immensely exaggerated by "freeloading" off the rest of us. Like owning that apartment that has that stellar view of Wrigley field, or Central Park, it's value is enhanced by taxpayers Land- they directly benefit from it... Or the camp owners on Lowe's lake that pay taxes on a postage stamp piece of land... that's a pretty special parcel ( perhaps that too heroic for you to have seen to know which ONE i am referring to- it is the only one on the entire state owned lake - other then the boyscout camp for a few short weeks a year). What they in part pay for it with, are we peasants paddling by once in awhile. They have full use of surrounding lands with no specific taxes owed for its use other then what we all pay dearly for, and because its remote, no public to directly deal with much ever. In the case at hand, it crosses a remote corner of their property, I very much doubt that they ever go there ... there are no fish to speak of, there is nothing much to see, they can't see nor hear people on it. I think that allowing people to float by, miles and a hill , unbroken woods and swamps from their grand lakes and camps is little compensation for their arrangement at state expense, you'd have a hard time convincing me of a "loss".

Maybe we should annex their property and add it via eminent domain for the common good of the majority of Heroic Canoeists that pay through the nose to live in this state. Brandreth lake is a gem from someone I know who has visited and fished it.

I applaud the decision for the limited common good it represents. And I would back them against anybody trespassing elsewhere or out of bounds from this navigable highway on their property. This is all about a tiny stretch of "road" they own both sides of for a weenie distance .

I stand with MacGrady and TCD on this and support Brandreth 100% And RichieC, when I get my next tax bill for our family farm I will pass it on to you. You can pay it and enjoy some of the "freeloading" yourself.

I'm not sure how relevant taxes are to the discussion, at least from the point of view of arguments in favor of any entitlement that may be derived from the paying of taxes. Just as the owners of private land pay taxes, New York State also pays taxes (property and school) on the state land it owns in the Adirondack Park. It seems to me that it is pretty even footing on both sides of the issue.

I stand with MacGrady and TCD on this and support Brandreth 100% And RichieC, when I get my next tax bill for our family farm I will pass it on to you. You can pay it and enjoy some of the "freeloading" yourself.

Agree 100 percent. Most of that rant had nothing to do with the underlying issue as the poster was too caught up in a perceived slight.

__________________
“Once there were brook trout in the streams in the mountains. They smelled of moss in your hand. On their backs were vermiculate patterns that were maps of the world in its becoming. Maps and mazes. Of a thing which could not be put back. Not be made right again. In the deep glens where they lived all things were older than man and they hummed of mystery.”
― Cormac McCarthy

It all boils down to the question of do the owners have a right to block a waterway which has not been declared "navigable in fact" by a court of law but has all the characteristics of a navigable waterway?
The questions of remoteness and practical utility are part of determining if the waterway is navigable. The court must now decide one way or the other.

It's not a clear cut case, but so far the judges are not convinced by plaintiffs arguments (and neither am I).

A quick look at the property shows an established network of roads. If invasive species and wildlife disruption are a concern of the landowners, I would think that they would be more concerned with potential for these impacts along the road corridors, rather than canoe and kayak usage of a short stream corridor.

Invasive species in particular are much more likely to spread along road corridors that receive frequent use by motorized vehicles. Non-motorized recreational use along a stream bordered by an intact, undisturbed riparian ecosystem really isn't anywhere near as likely to facilitate the introduction and establishment of invasive species.

(I'm assuming here that Shingle Shanty Brook does have an intact riparian ecosystem, as I've never paddled it.)

Of course, property rights does mean that you have the right to facilitate the establishment of invasive species yourself, while prohibiting the public from entering your property with the justification that they might do the same.

Invasive species in particular are much more likely to spread along road corridors that receive frequent use by motorized vehicles. Non-motorized recreational use along a stream bordered by an intact, undisturbed riparian ecosystem really isn't anywhere near as likely to facilitate the introduction and establishment of invasive species.

Generally that's the case, however the land owners have control of who drives on the roads while (in this particular case) the stream is not under their controls (if the decision stands). For example, the owners can require any logging equipment to be decontaminated prior to entering the parcel..

The chance of someone bringing an invasive organism and accidentally depositing it on the private stretch of stream is fairly marginal. Though if one of the other water bodies along the route gets "infected", transport to the stream becomes more likely.

Generally that's the case, however the land owners have control of who drives on the roads while (in this particular case) the stream is not under their controls (if the decision stands). For example, the owners can require any logging equipment to be decontaminated prior to entering the parcel..

The chance of someone bringing an invasive organism and accidentally depositing it on the private stretch of stream is fairly marginal. Though if one of the other water bodies along the route gets "infected", transport to the stream becomes more likely.

No person shall launch, or attempt to launch a watercraft from a state boat launching site, a fishing access site, or any other site from which a watercraft may be launched, or leave from these sites with any plant or animal, or parts thereof, visible to the human eye, in, on, or attached to any part of the watercraft, including livewells and bilges, the motor, rudder, anchor or other appurtenants; any equipment or gear; or the trailer or any other device used to transport or launch a watercraft that may come into contact with the water, unless a written permit is obtained from the department.

Granted, it'd still be easier to control this sort of thing on private land than on public land, and there is a difference between disinfecting equipment and simply removing visible plant parts.

It's really a minor point that doesn't really significantly affect the legal issues of the overall topic anyways. I just think that the argument that allowing public non-motorized use of the waterway could result in an increased likelihood that invasive species would be introduced to the property is of questionable merit. Especially when you consider that the public has uncontested access to the waterway in areas both upstream and downstream of the section that traverses private property anyways.

It's really a minor point that doesn't really significantly affect the legal issues of the overall topic anyways. I just think that the argument that allowing public non-motorized use of the waterway could result in an increased likelihood that invasive species would be introduced to the property is of questionable merit. Especially when you consider that the public has uncontested access to the waterway in areas both upstream and downstream of the section that traverses private property anyways.

Point well stated, and agreed. I'm not trying to assess or give merit to plaintiffs' legal argument.
I merely attempted to point out that additional traffic will include additional burdens for the owners (regardless or how trivial or substantial that burden may be).
The irony of this case is that the publicity generated will drive most of the increase in use (probably much more than the original article Phil published in Explorer)

Agree 100 percent. Most of that rant had nothing to do with the underlying issue as the poster was too caught up in a perceived slight.

My entire post was related to and a response to an entire portion of another post that was subsequently removed. So it is a bit hanging out there. The Shingle Shanty was described as a heroic destination for a very few intrepid "heroic" paddlers, which is a joke. Like it was near the top of Everest or something. That this ruling opens up all sorts of places to the public.. it does not.

Taxes have everything to do with this, because they are why the adjoining lands were all sold in the first place. Brandeth has control over a huge gem of a piece of property. I don't have any problem with that whatsoever, and would never trespass on their land, I envy them!. And in respect for their surrounding land, when I float down their creek I will leave no trace. They used to own way more and had a private railroad station to service it., You can still see the foundations from the tracks. They pay a hefty bit of taxes for what is left I am sure... but whatever that is, (and it is public domain information but the amount is unimportant), I do know that is is tiny when compared to if you added in all the state land surrounding their "island" of property. This is why they sell it to the state and not another individual. They get to benefit from your, any my, land ... spectacularly... It's a "freeload" situation of sorts, but one that works out for all concerned in the best possible way. Therefore, in return for all the benefits they receive, I don't have any moral or conscious problem that we get to float down their creek across a remote corner of their property, out of sight and hearing from them. The day the State posts it against Brandereth owners, then my point is over... and their land becomes very much diminished in worth, then they'd have a reason to complain.

Public bodies of water are the source and destination of this stretch, invasive species will not need any help by canoeists to become established. A specious argument.

I live down in Clinton... I'll put my taxes up against anybody reading this. not sure how anybody came up with that response. And remember, on top of my exorbitant taxes, I have the the Oriskany, which is a public fishing stream, that runs through my back yard that you are all welcome and legally entitled to walk 15 feet up unto my lawn.... The creek is one of the reasons I bought the house. I often go down to talk to passing fishermen, and a floater or boater or two. .. And I can both see and hear all of them from my house.. and I don't have a problem with it. So I have a hard time understanding the big deal... hopefully neither will the court.

My entire post was related to and a response to an entire portion of another post that was subsequently removed. So it is a bit hanging out there. The Shingle Shanty was described as a heroic destination for a very few intrepid "heroic" paddlers, which is a joke. Like it was near the top of Everest or something. That this ruling opens up all sorts of places to the public.. it does not.

I interpreted his term "heroic" meaning people challenging the property owners rather than heroic in the sense of being difficult. Maybe I read it wrong. Either way we all have our opinions and I happen to agree with MacGrady. Maybe he can clarify.

All it does is give a few miles of extra paddling to a few heroic canoe hobbyists, while doing violence to settled law and common sense.
-----------Originally responded to by RichieC

Heroic? I take exception to this obvious slight and veiled insult.

************************************************** *
Richie, I was analyzing the legal opinion, not intending to slight or insult anyone. Frankly, I don't see how anyone could interpret my comment that way.

But perhaps I should clarify. "Heroic" was not used to describe the 500 foot portage on the two-mile Wilderness Waterway itself. It was slight hyperbole by me to give context to the the navigability factors that all the judges agree on: whether the Waterway was of "practical utility" to the commercial or general public for purposes of "trade or travel" -- in 1788, which is a factor the court seems to ignore or be unaware of.

That's the short answer as to what I meant by heroic. Here's the longer explanation.

My context for analysis is what I perceive to be the historical general meaning of the navigability-in-fact criterion: Was the water body in question, in it's natural state, a practical highway for the public to engage in commercial travel or personal convenience travel -- as of the date the State entered the Union, which was 1788 for New York. This last requirement seems to be ignored in this litigation, but it's in many U.S. Supreme Court opinions defining the federal "title test" for navigability, which says that waters not navigable at the time of statehood were not subject to the Public Trust Doctrine when they were conveyed by the federal to the state government.

To me, the issue is not navigability of the two-mile Wilderness Waterway in isolation, but whether it is part of a navigable "highway" for "trade or travel" that necessarily had to have been reasonably accessible to the commercial or general public in 1788, and even today.

Of course, there is rarely any direct evidence of navigability, one way or the other, from so long ago. In this case, there is paltry evidence of practical usage by the general public for trade or travel along the Wilderness Waterway prior to NYS's final acquisition of the adjoining lands in 1998. There were no roads to Lake Lila or Little Tupper Lake in 1788 nor probably for long after that. Therefore, it would have been a pretty heroic canoe feat for a member of the general public in those days even to get to the Wilderness Waterway.

Even today, if you had to start the trip from Tupper Lake, which probably had a community and roads in the late 18th and early 19th centuries, you would have to paddle and portage what is now called the Whitney Loop. Dave Cilley's book calls this "challenging" loop the longest wilderness paddling circuit in the east, and states that it is 55 miles long with 20+ portages. Was anyone other than a few explorers or hero hobbyists canoeing this route for some reason in 1788 or even in 1851 when the State conveyed to Brandreth? I doubt it.

Even if we credit the existence of the seasonal roads into Lake Lila and Little Tupper Lake and focus solely on what the court calls the Lila Traverse, which is the route Phil Brown actually took with the assistance of shuttle vehicles, the court's own words make the Lila Traverse seem fairly heroic from the perspective of a "practical utility" highway for "trade or travel" for the general public.

Even the majority opinion gives this flavor. They say of the Lila Traverse:

Even now, access to the Waterway remains difficult,
requiring lengthy canoe travel across the Wilderness Area on the
various component lakes and streams of the Lila Traverse andseveral portages, the longest of which covers 1.75 miles.

The dissent goes into greater detail on the difficulty of accessing and traveling across the Lila Traverse:

"As defendants [Brown and NYS] now depict it, the Lila Traverse begins at the public access point on Little Tupper Lake with a 4.19-mile paddle across the lake, followed by an additional 1.3 miles by water to the first portage of .1 miles. From there, travel by water for another 1.18 miles on Rock Pond is possible until the next
portage, which is 1.75 miles to Hardigan Pond. This portage has
been described as difficult, with the path oftentimes submerged
or muddy. The water travel on Hardigan Pond is .61 miles,
followed by another portage of .4 miles to the Salmon Lake
Outlet. From there, water travel of .92 miles on the Salmon Lake
Outlet followed by .36 miles on the Little Salmon Lake leads to
another portage of .4 miles to Lilypad Pond, which then feeds
into the Narrows where the water crosses the property line and
leads to the privately owned Mud Pond, allowing for one mile of
water travel over plaintiffs' private property before reaching
the Mud Pond Outlet Rapids. A short portage around the Mud Pond
Rapids is required before following the Mud Pond Outlet to the
Shingle Shanty Brook for 1.28 miles until it exits plaintiffs'
property and reenters the publicly-owned Whitney Wilderness Area.
From there, the public-owned portion of Shingle Shanty Brook
leads for 2.14 miles to publicly-owned Lake Lila, which requires
another 2.14 miles of water travel to the public beach. Yet
another .3-mile portage is required to the nearest publicly
accessible road, which is only open seasonally."

There are very, very few places in the US that have the kind of interconnected rivers, streams, bogs and lakes like the Adirondacks. Most paddlers I know -- which today are probably 90% kayakers -- are not interested in long portage paddling trips. So while the Lila Traverse may not be a heroic portage route to an experienced, motivated and healthy-enough open canoe hobbyist, I suggest there are very few such people even in the recreational paddling community. And, because of the mention of a "recreational factor" in the NY Court of Appeals Sierra Club decision, recreational evidence in today's world is really the only probative evidence that the majority judges are relying on.

My main argument and policy point of view is this:

Do we really want a system of property rights law that divests private landowners of their exclusive rights to a two mile shallow stream, even though there is virtually no evidence that anyone ever used the shallow stream as a "highway" for practical commerce, travel or even recreation:

-- when the US conveyed the surrounding lands to the state 227 years ago; or

-- when the state conveyed the surrounding lands into private ownership 164 years ago; or even

-- at any time prior to the State's acquisition of adjacent private lands about 17 years ago; and

-- where there is a publicly-maintained portage trail around the shallow stream,

just because, now that there are adjacent public lands with seasonal public access roads, a very small percentage of the recreational paddling community, who, by the very fact that they are on the Lila Traverse, evidence a liking for multiple portage canoe trips, want a perpetual legal right to paddle the short shallow stream instead of taking one other available public portage around it?

Even the majority opinion, in footnote 5, says of such a legal rule that they adopt:

"[It] appears most unlikely that anyone contemplated that this remote property was burdened by a public easement of any nature when the property was conveyed into private hands in 1851, or indeed, at any time prior to the State's purchase of the adjoining lands. . . . [W]e share the dissent's concern that the application of the rule in cases such as this may destabilize long-established expectations as to the nature of private ownership . . . . "

I'd venture a guess that the majority feels compelled to adopt this destabilizing property law rule because of the NY Court of Appeals' ambiguous language about the "recreational factor" in the Sierra Club case, and they would prefer that Court to clarify the rule so as not to destabilize property ownership expectations in truly marginal navigability cases such as this one.

There are many hundreds of more difficult routes commonly traveled by thousands of people every year. The loop mentioned in other current threads of the Oswegatchie to Cranberry back to Lows is 20 times more difficult. And approaches the 40 mile range of paddling with various obstacles numbering in the 50's… I didn't have a GPS last time I did it, it adds up because of the folding back and forth of the river. A 3.5mile carry in two parts in-between Lows and the river alone, we lost count at 35 beaver dams, and walk around obstacles.. and falls etc. . If I described that route in the same way the Little Tupper to Lila is described in your thread, … well it would be impressive. That is a "lawyeresque" attempt to skew the scope of the situation into some sort of arduous and ridiculous route that nobody would ever want to attempt. Don't blame them, they have a paid agenda, they don't really care about "truth" or justice- just winning. For the record, is a typical and fairly easy backcountry canoe route. Shingle shanty is only being considered by the court because of bigger and more important precedence it may affect elsewhere. Some of those you may not be so happy about depending on the ultimate outcome of this. The wealthy people who would hang the posted signs do want you or I anywhere they can keep us from.

Commerce happened all over the Adirondacks in every direction. Trappers, hunters, guides conducting business of transporting "sports". Trade, etc. Logging on other stretches. The West Canada above Nobleboro was and is not what I would consider canoeable, however it was a very used "trade route" in logging days, I do not believe you can currently go into the Adirondack league lands via the creek at the north end of Haskell road. I mention this because it isn't paddleable… and yet it certainly falls into a trade route designation. So you can't tell by looking at a water route if it was used for commerce. Shingle shanty was certainly used to get to Lila and Stillwater and to Tupper and the Raquette river in the past before the roads were built, and not all of those people were doing it for fun.

Once again, most large tract owners have been allowed to sell off all but a postage stamp area completely land locked by public lands. They retain rights to roads in otherwise wilderness areas that neither you nor I can use other then to walk. Their camps remain forever remote, with no prospect of other buildings popping up anywhere near. It is a good trade for all involved. In return we get to use the water version of roadways, just like everywhere all across the country. But only for tiny self propelled craft, no motors, not allowed to damage anything. All sorts of rules intended to leave no trace. The shores and land will remain posted and off limits.. just like all the roadways all across the country… … we have to stay on the road. I consider it part of the give and take mentioned in all my other paragraphs you have skimmed past.

So how about this, close the private roads across public lands in wilderness areas, and I'll portage around Shingle shanty. See how long it takes them to sell off their property once they have to walk to it, then we'll be able to paddle on their lakes too. ( I don't really think this way) LOL

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